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Sex offender’s home ownership doesn’t impact residency restriction

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A convicted sex offender who argued that a probation condition prohibiting him from living within 1,000 feet of a school is unduly restrictive on his property interest in a home he owns lost his appeal before the Indiana Court of Appeals.

Mark Gaither committed child molesting in 1995 and 1996 but wasn’t convicted until August 2008. As part of his probation and parole, he isn’t allowed to live within 1,000 feet of school property. He owns a home in Muncie that is within 1,000 feet of a middle school, and he wants to live there. The statute requiring that sex offenders on probation/parole be prohibited from living within 1,000 feet of a school was enacted in 1999.

Gaither claims because he committed his offenses before the statutes were enacted, he isn’t subject to them and the residency restriction placed on him violates the ex post facto clause of the Indiana Constitution.

Even though his probation has since expired, the COA ruled on the case because of public importance.

Gaither tried to distinguish his case from Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in which the Indiana justices ruled that Hevner, who had been convicted of a sex offense, was subject to conditions of probation, including living within 1,000 feet of a school. Gaither claimed that because he owned his home before he committed the child molesting, he should be allowed to stay in it.

The justices “made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public,” wrote Judge John Baker.

The appellate court ruled in Mark Gaither v. Indiana Dept. of Correction, et al.,18A02-1111-MI-1073, that Indiana courts have held that prohibiting a sex offender from living within 1,000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible.

 

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  • SOR
    I read and I have the article that states that the Indiana Supreme Court ruled unaniousmly the sex offender registration is punitive (puinishment) therefore it is doublr jeopardy!
  • Rehab
    If someone is convicted of possession of child porn but never did anything else or caused harm to a child or any other person in their 40+ years, what type of rehabiltation do they need? Should they have their eyes poked out?

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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